UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6546
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT KENNEDY, JR., a/k/a Mosquito,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Norman K. Moon, District
Judge. (4:01-cr-70025-nkm-1)
Submitted: May 6, 2010 Decided: June 15, 2010
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Robert Kennedy, Jr., Appellant Pro Se. Joseph W. H. Mott,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Kennedy, Jr., seeks to appeal four orders of
the district court: an August 4, 2008 order denying Kennedy’s
motion for reduction of sentence pursuant to 18 U.S.C.
§ 3582(c)(2) (2006), a February 3, 2009 order denying Kennedy’s
second § 3582(c)(2) motion as an untimely motion for
reconsideration, and two subsequent orders refusing to reopen or
extend the appeal period for the August 4, 2008 order and the
February 3, 2009 order. We dismiss the appeal in part and
affirm in part.
Kennedy had ten business days after entry of each of
the orders in question to note his appeal. Fed. R. App. P.
4(b)(1)(A) (2008); ∗ see United States v. Alvarez, 210 F.3d 309,
310 (5th Cir. 2000) (holding that § 3582 proceeding is criminal
in nature and ten-day appeal period applies). With or without a
motion, upon a showing of excusable neglect or good cause, the
district court may grant an extension of up to thirty days to
file a notice of appeal. Fed. R. App. P. 4(b)(4); United States
v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985). The district court
properly found that Kennedy’s efforts to reopen or extend the
∗
Rule 4, Fed. R. App. P., has been amended, effective
December 1, 2009, to allow fourteen calendar days to note an
appeal in a criminal case. However, the amendment is
inapplicable to this appeal.
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appeal period as to the August 4, 2008 order were untimely and
beyond the excusable neglect period. The court also found, as
to the February 3, 2009 order, that Kennedy’s proffered
justification for his late notice of appeal did not constitute
excusable neglect warranting extension of the ten-day appeal
period.
We have thoroughly reviewed the record and agree that
Kennedy has failed to demonstrate excusable neglect or good
cause justifying a relaxation of the ten-day appeal period of
Rule 4(b)(1)(A). See generally United States v. Urutyan, 564
F.3d 679, 685 (4th Cir. 2009); United States v. Mitchell, 518
F.3d 740, 750 (10th Cir. 2008). Therefore, we dismiss the
appeal to the extent it seeks review of the court’s August 4,
2008 and February 3, 2009 orders. As to the district court’s
two orders entered February 18, 2009, and March 18, 2009,
refusing to extend or reopen the appeal period, we find no
reversible error and affirm.
Kennedy’s appeal is dismissed in part and affirmed in
part. We deny Kennedy’s request to place his appeal in
abeyance. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
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